Introduction
Under Nigerian law, employers have several inherent powers, including power to discipline employees in deserving circumstances. One of such disciplinary powers is the power to suspend employees. The inherent power of employer to suspend an employee pending investigation of an alleged misconduct or as punishment for misconduct is unquestionable if it is properly exercised. The power to suspend is judicially recognized. The court will likely side with an employer where an employee rushes to court following his suspension unless in limited circumstances bordering on constructive dismissal or other forms of unfair labour practice.
Our law firm, KORIAT & CO., was privileged to have successfully represented the Claimant in SUIT NO: NICN/LA/53/2020 JATO DANIEL SUNDAY V. BUA INTERNATIONAL LIMITED delivered on 28th of March 2025 by my noble lord, Justice S. H. Danjidda of the National Industrial Court, Lagos Division, holding at Uyo (where my lord was transferred shortly after both parties filed their respective final written addresses).
One of the highlights of the Court’s decision in the above case is his lordship’s agreement with our submission that an employer who suspends an employee has a corresponding duty to recall the employee after the period of suspension and failure to recall a suspended employee amounts to a continuation of the suspension, which is actionable at the instance of the affected employee.
The Court also rejected the defendant’s contention that the employee is deemed to have abandoned his employment by failing to resume work after serving suspension when he had no prior record of abandonment or absence from work without permission. Instead, the court agreed with our submission that the allegation of abandonment of duty is gross misconduct (particularly because, in this case, it leads to an implied termination of employment) and such allegation ought to have been investigated and the suspended employee ought to have been afforded fair hearing by being recalled or invited to explain why he should not be deemed to have abandoned his employment.
Consequently, the Court granted majority of the Claimant’s prayers, including the relief for an order directing the defendant to pay the Claimant all his monthly salaries of over 6 years, from April 2014 (when the claimant was completed the suspension) to 14th February, 2020, when the claimant instituted the suit.
Summary of the Facts
The Defendant employed the Claimant via a letter dated 27th October 1998 (Exhibit JATO 1) and confirmed his employment after 12 years when he complained in November 2011. He was employed as an office assistant in the office of the Defendant’s Chairman but later became the Chairman’s personal errand boy. In December 2013, while on leave, the Defendant suspended him for three (3) months via the Internal Memo dated 27th December 2013 (Exhibit JATO 4) without salary or any disciplinary hearing either before and after the suspension. The Head of Human Resources telephoned him to report to the office (while on his annual leave) to pick up the memo of suspension.
According to the memo, the Chairman was turned back at the International Airport while attempting to proceed on an overseas trip because his international passport had expired (an event that caused the Chairman serious embarrassment) and the Claimant was blamed for the omission. The Claimant only got to know about the whole story from the Memo and from making further calls to colleagues in the Chairman’s office. No query was issued. No disciplinary proceeding was conducted. Just a Memo suspending him without pay whilst on leave.
The Defendant withheld the Claimant’s salaries even though the Defendant has no such power under the contract of employment. He served the suspension without question. After the suspension, all efforts by the Claimant to resume work proved abortive. When the Claimant resumed work on 27th March 2014 after the suspension, the Defendant told him to go home, that they would get back to him. They never did. On the advice of the Head of HR, who said the Claimant should beg the Chairman, the Claimant texted the Chairman but got no response. Since then the Defendant refused to recall the Claimant back to work despite several attempts he made to resume work.
The Claimant reported the matter to the Public Complaint Commission but the Defendant declined to honour the Commission’s invitation. Then he came to Koriat & Co. As the Claimant’s Solicitors, Koriat & Co. wrote a demand letter to the Defendant requesting that the Claimant be recalled from suspension. The Defendant received the Koriat’s letter but did not reply. The Defendant did not at any time raise the allegation of absence from work without any permission until the Claimant sued for unlawful suspension. The case proceeded to full trial after exchange of pleadings. Thereafter, the parties filed their final written addresses, following which the learned trial judge took oral arguments of counsel and thereafter delivered judgment in favour of the Claimant.
Legal Issues and Perspectives on the Case
The parties were ad idem that the Claimant was suspended for three (3) months by Exhibit JATO 4 dated 27th December 2013 (i.e. the memo) without pay or fair hearing till 26th of March 2014 and the Claimant had no challenge to the decision, even though the “suspension without pay” could be questioned for being wrongful for lack of fair hearing. What the Court was called upon to determine is whether the Claimant remained suspended even after 26th March 2014 given the Defendant’s failure to recall him back to work; or the Claimant is deemed to have abandoned his employment without any permission by his inability to resume work after suspension.
So, on behalf of the Claimant, we submitted the following two issues for determination:
(i) Whether in view of the facts, evidence of the parties and the state of the law, the Claimant’s employment with the Defendant subsists as a result of indefinite suspension or has been lawfully terminated as a result of abandonment of work? and
(ii.) If the answer to Issue 1 is resolved in favour of the Claimant, whether the Claimant is entitled to Reliefs I, II, IV & V in this case? (following our withdrawal of Issue No. III and application to the court to strike out same).
The legal constituents of the above issues can be broken into the following subheadings:
(1) The Legal Effect of Clause 15(a) of Exhibit BUA 1C (Staff Handbook of BUA International Ltd.)
One of the central issues in the case is the legality of the Staff Handbook (Exhibit BUA 1C) which the Defendant tendered and heavily relied on in their defence particularly the curious provision in Clause 15(a) which states that “Any employe who absents himself/herself from duty for three(3) conservation(sic) days or more without any permission will be deemed to have abandoned his/her job and voluntarily withdrawn from the service of the company.” This clause is more interesting in this present case where after suspension, the Defendant’s security personnel and HR staff prevented him from resuming and the Defendant failed to issue a letter recalling him back to work.
Our first submission before the Court is that the BUA Staff Handbook (Exhibit BUA 1C) has no probative value in the resolution of the case because it was never issued to the Claimant. The Claimant has denied the existence or receipt of Exhibit BUA 1C and the Defendant has no evidence before this Court to show that Exhibit BUA 1C was delivered to the Claimant. We referred his lordship to the Acknowledgment Page of Exhibit BUA 1 C tendered by the Defendant, which is blank and unsigned. We urged the Court to discountenanced the Handbook on the ground that “oral evidence cannot contradict the content of documentary evidence; documentary evidence also speaks for itself” as enjoined by the Court of Appeal in
Uttov v. Uttov (2022) LPELR -57729 (CA).
As we all know, Section 7 of the Labour Act mandatorily requires all employers to provide their employees with written particulars of their employment contract within three (3) months of engagement, which the Defendant has no evidence of its compliance with the said law. During cross examination on whether Exhibit BUA 1C was given to the Claimant, both CW1 (Claimant who testified for himself) and DW1 (the Defendant’s witness) respectively testified as follows:
CW1’s cross examination evidence: “I have never seen the document shown to me as the Defendant handbook.”
DW1’s cross examination evidence: “I am sure that Exhibit BUA 1C was given to the claimant but I was not there when it was given to the claimant. I don’t have any record or evidence before the court that the claimant received a copy of Exhibit BUA 1C”.
So, should the Court then countenance the said Handbook? It is our view (though not canvassed at the hearing of the Sunday v. BUA case) that an employer should not be excused from liability where they seek to take cover under or benefit of their omission or wrong. That would be tantamount to eating one’s cake and having it at the same time.
Also, he comes to equity must come with clean hands. The fact that the Claimant worked meritoriously for almost 13 years without confirmation of his probationary employment was one of our reference points in urging the Court to side with the Claimant and not with the Defendant who had acted inequitably and callously in deeming his employment terminated without bothering to care about the circumstances of the Claimant’s whereabouts.
Furthermore, as a general principle, proof of delivery of a document is by production of a dispatch book indicating receipt, or evidence of dispatch by registered post, or evidence of a witness credible enough to prove that the person was served with the document. See Nlewedim v. Uduma [1995] LPELR- 2053[SC] 12-13 and Shoprite Checkers [Pty] Ltd & Anor. v. A. I. C. Ltd [2020] LPELR-49905[CA]. We also referenced the Supreme Court’s decision in OMEGA BANK (NIG) PLC v. OBC LTD (2005) 8 NWLR (PT 928) 547 at 541 that: “Where a document is not signed, it may not be admitted in evidence even if it is admitted in evidence the Court should not attach any probative value to it”.
Alternatively, we argued that Clause 15(a) of the Exhibit BUA 1C amounts to unfair labour practice in view of the facts of the present case, particularly because the Claimant has no history of abandonment or disciplinary record, having worked meritoriously for about 16 years and the said Clause 15(a) permits the Defendant to treat absenting staff’s employment as terminated on the ground of abandonment of work without affording the affected employee a fair hearing opportunity.
Interestingly, the Court did not pronounce on the issue of non-bindingness of a handbook (Exhibit BUA 1C) that was never given to the Claimant apparently because the Court already disbelieved the allegation of abandonment which is founded on clause 15(a) of Exhibit BUA 1C and therefore felt no need to belabour the issue of legality of the Handbook.
Although a court must give a full and dispassionate consideration to all the issues raised and canvassed before it, however, we are well aware that it is not in all instances where a court’s failure to make a pronouncement on an issue raised is fatal to its judgment, particularly in the present case when the only defence of abandonment has crashed woefully for non-observance of basic principle of fair hearing. [See N.C.C. v. Motophone Ltd. (2019) 14 NWLR (Pt. 1691) 1; C. N. Okpala & Sons Ltd. v. Nig. Breweries Plc (2018) 9 NWLR (Pt. 1623) 16; Brawal Shipping (Nig.) Ltd. v. F. I. Onwadike Co. Ltd. (2000) 11 NWLR (Pt. 678) 387].
The learned trial Court recognised the Defendant’s right to suspend an employee when necessary, either as a punishment as in the instant case or to enable the investigation of an infraction, as an integral part of the employer’s right to discipline a staff but nevertheless resolved the first issue for determination against the Defendant when his lordship held as follows:
“I agree with the Claimant’s submission that clause 15(a) of Exhibit BUA1(c) constitutes an unfair term which is unreasonable. It will sound very uncommon that the Claimant who had worked with the Defendant for 15 years would just determine his employment by abandoning his duty. I think, it would have cost the Defendant nothing to look for the Claimant through his addresses and phone numbers which were available on Exhibit BUA1a & b to know his reasons for the alleged abandonment of duty. Arising from the above therefore, I do not believe that the Claimant abandoned his duty after his 3 month suspension. I find that the Claimant attempted to resume at his work place but was asked to hold on until he heard from the Chairman of the Defendant.”
According to the learned trial Court, even though Clause 15(a) of the Defendant’s Handbook says that any employee who absents himself from duty for 3 consecutive days without permission will be deemed to have abandoned his duty and voluntarily withdrawn from the service of the company, but I hold the view that this will only happen when enquiries and investigations are made and it is actually found out that the employee absented from duty without any doubt. The Court held further that regardless of Clause 15(a) of Exhibit BUA1c, the Claimant should still be given fair hearing on the alleged abandonment of duty and that that Clause 15(a) of Exhibit BUA1c cannot override the general principles of fair hearing in the investigation and resolution of alleged misconduct of which abandonment of work is one.
The judicial decisions are consistent on the fact that abandonment of duty without excuse constitutes misconduct. See Ibrahim v. Consumer Protection Council & Ors. [2015] 57 N.L.L.R. (Pt. 195) 318; Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt. 5) 17; Unical v. Essien (1996) 10 NWLR (Pt. 477) 225. Any employer who accuses an employee of abandonment of duty (being a misconduct) ought to afford the employee fair hearing before deeming him to have abandoned his duty without any permission. See Arinze v. F.B.N. Ltd. (2004) 12 NWLR (Pt. 888) 663 SC.
In this particular Sunday v. BUA case, the phrase “WITHOUT ANY PERMISSION” in Clause 15(a) of Exhibit BUA 1C, in our submission, ought to be construed strictly against the Defendant to impose a duty on the Defendant to first investigate whether the Claimant was, indeed, absent from work with or without any permission before the Defendant could take any cover under or benefit of the clause by raising the defence of abandonment. We argued and the learned trial Judge agreed that the Defendant’s argument that the Claimant abandoned his employment is a desperate attempt to cover up their lapses and an afterthought as they have no evidence of the Claimant’s abandoning his employment and that the testimony of the Defendant that the Claimant did not resume work after suspension is speculative in the light of the testimonies elicited under cross-examination.
(2) The Legal Implication of the Defendant’s Failure to Recall the Claimant after Suspension
Another contentious issue in the case against BUA International Limited (and we dare say, in most employment litigations bordering on abandonment of work after serving suspension) is the consequence of employer’s failure to recall an employee after suspension. On their part, the defence argued that it was unnecessary for it to write to recall or invite the Claimant or enquire its whereabouts after the period of suspension and it was entitled to treat the Claimant’s employment as terminated due to abandonment of work and voluntary withdrawal from work, relying on Clause 15(a) of Exhibit BUA 1C.
However, our submission before the Court is that the Claimant remains suspended in so far as the Defendant fails or refuses to recall him and even though the Defendant did not issue a new suspension letter on 27/03/2014, when the initial 3 months’ suspension lapsed, the refusal of the Defendant to recall or allow the Claimant to resume work means the Claimant remains suspended till he is recalled.
Evidence elicited under cross examination established that the Defendant suspended the Claimant without salary and refused to recall the Claimant or allow him to resume on 27/03/2014 and thereafter they came under clause 15(a) of Exhibit BUA 1C to allege that the Claimant abandoned his work. It is logical that whenever an employer suspends an employee, the employer must either recall or disengage the suspended staff. So, the Defendant was duty bound to either recall or disengage the Claimant but because they did neither, the Claimant’s suspension must be deemed indefinite.
In the Sunday v. BUA case, the learned trial Judge recognised the inchoate and precarious situation of a suspended employee when his lordship held (adopting the views of the Court of Appeal in the case of Globe Motors Holding (Nig) Ltd v. Oyewole (2022) LPELR – 56856 (CA)) as follows:
“Since suspension is not a termination of the employment contract nor a dismissal of the employee, the implication is that the employee is still in continuous employment of the employer until he is RECALLED or formally terminated or dismissed. Pending his RECALL or dismissal, a suspended employee is entitled to his wages or salary during the period of suspension, unless the terms of the contract of employment or the letter of suspension itself is specific that the suspended employer will not be paid salaries during the period of suspension. See National Judicial Council V. Aladejana (2014) LPELR- 24134 (CA).”.
The above pronouncement is also consistent with an earlier decision in S.P.D.C Nig. Ltd v. Emehuru [2007] 5 NWLR (Pt. 1027) 347 where the Court held that: “….where an employee is placed on hold; he lives day by day in anticipation of either being RECALLED or being laid off.”
The Supreme Court in Longe v. First Bank of Nigeria Plc [2010] 6 N.W.L.R. (Pt. 1189) 1 at 60 per Adekeye JSC also held as follows: “Suspension is usually a prelude to dismissal from an employment. It is a state of affairs which exists while there is a contract in force between the employer and the employee, but while there is neither work being done in pursuance of it nor remuneration being paid. Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other.”
The totality of the above is that there has to be an end to the period of suspension, meaning a suspension must be definite after which a suspended employee must be recalled or disengaged, as the case may be. Internal policies like Clause 15(a) of Exhibit BUA 1C cannot be relied on to justify an implied disengagement of the employee on the ground of abandonment or voluntary withdrawal from work. Interestingly, in agreeing with us, the learned trial Court held as follows:
“To me, the proper thing to do by the Defendant was to look for the Claimant and find out the reasons for his absence before it deemed his employment determined. After all, the Claimant averred at paragraphs 17 to 19 of his statement of facts that upon the expiration of his suspension period, he dressed up and resumed at the Defendant’s office but the Chairman’s Secretary and the Head of Human Resources Department informed him that he should hold on until he heard from the Chairman.
Eventhough Clause 15(a) of the Defendant’s Handbook says that any employee who absents himself from duty for 3 consecutive days without permission will be deemed to have abandoned his duty and withdrawn from the service of the company, but I hold the view that this will only happen when enquiries and investigations are made and it is actually found out that the employee absented from duty without any doubt. Regardless of Clause 15(a) of Exhibit BUA1c, the Claimant should still be given fair hearing on the alleged abandonment of duty. My view is that Clause 15(a) of Exhibit BUA1c cannot override the general principles of fair hearing. Clause 15(a) is just a presumption that is rebuttable. That was the more reason why the Defendant should have made enquiries and investigations about the Claimant’s absence from work.
I think the question whether the Claimant resumed work or not does not even arise. What is important is whether the Defendant had taken steps to investigate the whereabout of the Claimant with a view to giving him fair hearing.
I do not therefore agree with the Defendant that the best approach to a long serving employee with no prior record of abandonment was to apply Clause 15(a) of the Handbook when he is absent for days. It is unreasonable for the Defendant to refuse to take any action by investigating the whereabouts of the Claimant before it deemed his employment abandoned. The action of the Defendant of not investigating the whereabouts of the Claimant undermines not only the principle of fair hearing but the long standing employment relationship that had been in existence between the Claimant and the Defendant.”
(3) Learning Points for Employers and Employees
One of the learning points from the Sunday v. BUA case is that employers must seek proper legal guidance before undertaking any disciplinary procedure. In the event of suspension, employers must take active step to recall suspended employees after serving the period of suspension. The means of communication with the employee such as his private email address (not his/her official email if access is restricted) or his last known address can be resorted to if the employee is unreachable on telephone.
Also, before deeming an absenting staff’s employment to have been terminated, the employer should take reasonable steps to investigate the whereabouts of the affected employee. By investigating, the employer should invite the employee for questioning or issue a query for the employee’s response, preferably through the email address with which the employee applied for the job. Failure to investigate may amount to breach of fair hearing and nullity of the action of the employer.
Furthermore, the staff handbook ought to be subjected to periodic review to ensure its compliance with employment laws, including recent judicial decisions and international best practices in employment and labour relations.
It is also important for employee to document or keep records of his suspension and attempts to resume work after suspension and everything in-between.
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